R v Stead
[2021] NZHC 1411
•15 June 2021
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2021-042-164
[2021] NZHC 1411
THE QUEEN v
ADAM WILLIAM STEAD
Hearing: 15 June 2021 Appearances:
S O’Donoghue for the Crown S J Zindel for Mr Stead
Judgment:
15 June 2021
SENTENCING NOTES OF GWYN J
Introduction
[1] Mr Stead, you appear for sentence having pleaded guilty to 14 charges in total: four charges of abduction of a young person under 16;1 six charges of driving while
1 Crimes Act 1961, s 210(1)(a); maximum penalty seven years’ imprisonment.
R v STEAD [2021] NZHC 1411 [15 June 2021]
disqualified;2 one charge of failing to stop for red and blue lights (aggravated);3 two charges of speaks threateningly;4 and one charge of common assault.5
[2] You accepted a sentence indication I gave on 12 May 2021, where I indicated a maximum end sentence of one year, four months’ imprisonment.6 I emphasise at the outset that your sentence will not be higher than what I indicated in May, so please do not worry about that.
[3] Although you heard the comments I made in my sentence indication in May, I will repeat those comments, which explain the way in which I reach the sentence. Because sentencing is a public function, I will also describe the background facts that are relevant to the sentencing process.
[4] In sentencing you today, I apply a law called the Sentencing Act 2002, which sets out the purposes and principles of sentencing. The purpose of sentencing in your case is to hold you accountable for the harm you have caused through your offending; to promote a sense of responsibility for, and acknowledgment of, that harm; to denounce and deter the criminal conduct; to protect the community; and to assist in your rehabilitation and reintegration into society.7 What that means in practice is that I have to look at the whole situation and do what I can to mark what you have done, but also to acknowledge who you are and your particular circumstances and background.
[5] In sentencing you today, I will first set out your offending, explain your personal circumstances, and set out counsel’s submissions. I will then calculate a sentence by adopting a two-step approach: first, I set a starting point based on the offences you are charged with; and second, I apply uplifts and discounts to reflect your personal aggravating and mitigating factors.
2 Land Transport Act 1998, s 32(1)(a) and 32(3); maximum penalty three months’ imprisonment or
$4,500 fine, and the Court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.
3 Sections 52A(1)(a)(ii), 52A(6), and 114(2); maximum penalty $10,000 fine.
4 Summary Offences Act 1981, s 21(1)(a); maximum penalty three months’ imprisonment or $2,000 fine.
5 Crimes Act 1961, s 196; maximum penalty one year imprisonment.
6 R v Stead [2021] NZHC 1062.
7 Sentencing Act 2002, s 7.
The offending
The abduction charges, and related driving charges
[6] The four abduction charges, five of the driving while disqualified charges,8 and the failing to stop charge all arise from activity over a one-month period from December 2020 to January 2021. The abduction charges all relate to the same complainant, a 14 year old girl who was known to you. You were 19 years old at the time of the offending,
[7] The complainant is the subject of a guardianship order,9 and has been in the care of Oranga Tamariki in the South Island since 2013. The Police say you know the victim is in the care of Oranga Tamariki, and you have been spoken to by Police on two separate occasions and warned not to pick up the victim without the knowledge and consent of her guardian. The victim’s caregiver had also warned you not to take her.
[8] All four abduction charges involve the victim absconding from Oranga Tamariki care, and being collected by you in your car. You often drove her out of town, and one time you were located on the Bluebridge ferry together in Wellington. On the final occasion, Oranga Tamariki staff were waiting to board a flight at Christchurch airport with the victim, to return her home. You contacted the victim by text message, she ran to your car, and you drove out of town.
[9] The Police contacted you on your cell phone while you were in Springs Junction, approximately 2.5 hours outside of Nelson. You claimed you did not know where the victim was, and agreed to travel to the Nelson Police station to clear the matter up. At that stage, the victim climbed into the boot of the car so she would not be seen.
[10] At approximately 2.45 pm you arrived at the Nelson Police station and parked your car on the street. The Police arrested and interviewed you. At approximately
8 Mr Stead was disqualified from driving for a period of six months on 20 July 2020.
9 Oranga Tamariki Act 1989, ss 101 and 110(2)(b).
5.30 pm Police located your car and found the victim in the boot. You did not tell anyone she was in the boot until approximately 7.00 pm.
[11] The Police noted that it was summer, the boot lid was closed, the car was locked, and there was no fresh air circulating in the car.
[12] The failing to stop charge occurred when Police saw you driving with the victim in your car. Police conducted a U-turn to follow you, and activated their red and blue flashing lights. You accelerated and drove at high speed, and the Police did not pursue you due to the dangerous manner of your driving.
[13] Your explanation for the offending is that you were trying to help the victim, who wanted to get away from her abusive parents and caregivers.
The speaks threateningly and common assault charges
[14] The charges of speaking threateningly and common assault relate to an incident on 29 July 2020. You approached your mother at her workplace and asked her for money. She refused, and you became irritated and aggressive towards her. Your father was in his car waiting to collect your mother, and you approached him. When he also declined your request for money, you threatened him, saying “I’m going to kill you, I’ll break your neck”. You then threw approximately 20 punches at your father, as he moved away and called for help from members of the public.
[15] When Police spoke to you about this incident, you became enraged and were arrested. You again spoke threateningly, this time to Police officers, threatening to burn down their houses and kill their families. You also attempted to physically assault Police officers.
The standalone driving charge
[16] The final charge of driving while disqualified occurred on 3 December 2020, when you were stopped as part of a Police check point.
Personal circumstances
[17] I have read three psychological reports: one from Ms Fon dated 16 July 2020,10 one from Ms Roulston dated 12 February 2021, and one from Mr Carrell dated 19 February 2021. All three reports confirm you have been diagnosed with attention deficit hyperactivity disorder and complex post-traumatic stress disorder, and that you have issues with alcohol and cannabis dependency. Ms Fon and Ms Roulston confirm you have been diagnosed with pervasive developmental disorder, and Mr Carrell confirmed you have been diagnosed with autism spectrum disorder. In Mr Carrell’s opinion, some of your history also fits with a diagnosis of other specified schizophrenia spectrum and other psychotic disorder, attenuated psychosis syndrome.
[18] Mr Carrell explained that you reported being exposed to physical and emotional abuse in your formative years, and you have relied on drugs and alcohol to manage your distress. These factors have left you vulnerable to mental health difficulties. Mr Carrell also explains that your experiences have left you with lasting difficulties that impair many areas of your life.
[19] Although it appears you were not struggling specifically with mental illness or substance abuse at the time of the offending, the reports explain the difficulty you may have with impulsivity and emotional regulation. Ms Roulston says that your history and diagnoses mean it is likely the abduction offending occurred “in the context of wanting to provide safety to an individual who [you] perceived as needing help”, and you were unable to do so by engaging with appropriate professional services.
Submissions
[20] I am going to summarise what each of Crown counsel and your counsel, Mr Zindel, have had to say about the appropriate sentence.
[21] At your sentence indication, Ms Crawford, who was then counsel for the Crown, submitted:
10 Ms Fon confirmed that it was likely still valid in January 2021.
(a)a starting point of between two years, nine months and three years’ imprisonment is appropriate;
(b)an uplift of 15 months is appropriate for the driving charges;
(c)a 25 per cent discount for guilty plea is available;
(d)a discount of 15 per cent for your youth and mental health issues is appropriate; and
(e)mandatory disqualification from driving should occur upon conviction for the driving offences.
[22] At the hearing today, Ms O’Donoghue acknowledged the end sentence I arrived at in the sentence indication. She did not press for any particular outcome, but did express a concern that ordering home detention to your parents’ house might inadvertently set you up to fail. Ms O’Donoghue does not oppose an order for leave to apply for home detention at a later date, if a suitable address becomes available.
[23]At your sentence indication hearing, your counsel, Mr Zindel, submitted:
(a)a starting point of two years, six months’ imprisonment for the lead offending is appropriate;
(b)an uplift of 15 months is appropriate for the driving charges;
(c)an uplift of one month is appropriate for the assault and speaking threateningly charges;
(d)a 25 per cent discount for guilty plea is available;
(e)a discount of 20 per cent for your mental health issues is appropriate;
(f)a discount of 15 per cent for your youth is appropriate;
(g)if the end sentence is two years or less, between seven and eight months’ home detention might be suitable; and
(h)disqualification from driving for one year is appropriate.
[24] At the hearing today, Mr Zindel submitted the indicated sentence of one year, four months’ imprisonment should be converted to one of home detention. Mr Zindel acknowledged the risks inherent in home detention at your parents’ home, but submitted that the necessary constraints of home detention would help to modify your behaviour. He also candidly acknowledged that having you confined to the house might instead exacerbate any existing tensions.
Starting point
[25] Now I will talk about the way I have decided to approach the starting point in your case. I treat the four charges of abduction as the lead offending, and adopt a starting point for those charges. I then consider any increases (uplifts) for the remaining charges. I will refer to some other cases that involved the same kind of charges, as they provide a useful comparison.
The abduction charges
[26] In R v Howard, which the Crown submitted is most similar to your offending, the 42 year old defendant faced one charge of abducting a 14 year old girl.11 The defendant met the victim when her family visited a tourist attraction he worked at. He subsequently established a relationship with her via text messages, and eventually collected her from her home and took her for 10 days. The aggravating features of his offending included the victim’s vulnerability (due to both her age, and personal issues she was struggling with), the age disparity, the inappropriate nature of the relationship between the defendant and the victim (although the Judge noted there was no sexual activity between the two, he highlighted that there were “sexual overtones” to their communications,12 and the two were found naked together in a hot pool13), the degree
11 R v Howard DC Tauranga CRI-2008-070-4997, 8 December 2009.
12 At [16].
13 At [5].
of planning and premeditation, the fact the defendant evaded Police and disregarded a nationwide campaign aimed at finding the victim during the 10 days, and the impact on the victim and her family.14 The Court adopted a starting point of two years, six months’ imprisonment.15
[27] Both the Crown and Mr Zindel relied on Fifield v R, where a 27 year old defendant faced two charges of sexual connection with a young person and one of abduction, in relation to a 15 year old girl.16 The defendant met the victim through a dance group, and developed a sexual relationship with her. By arrangement, he met the victim before school one day and took her to his home; Police found him there that day, in “compromising circumstances.”17 The aggravating features of the offending included the age disparity, the impact the sexual offending had on the victim, and the level of premeditation.18 The Court adopted a starting point of three years, seven months’ imprisonment,19 treating the abduction charge as a “distinct aggravating feature rather than warranting a discrete uplift.”20
[28] Mr Zindel also relied on Houpapa v R, where a man faced numerous charges, including of sexual and violence offending against his ex-partner and abduction of their child for one day.21 The Court found the abduction involved a high risk to the child, due to an associated dangerous driving charge, and the defendant’s intent in the abduction was retaliatory (against his ex-partner).22 Although treating the sexual offending as the lead offending, the District Court Judge did impose a separate uplift for the abduction charge. He adopted a starting point of 18 months to two years’ imprisonment, reduced to one year to reflect the totality principle.
[29] Turning now to the details of your offending, the most aggravating feature is that it was repeated and premeditated, despite numerous warnings from Police and the victim’s caregiver. I also note the age disparity of five years between you and the
14 At [12]-[14] and [16]-[18].
15 At [22].
16 R v Fifield [2017] NZCA 410.
17 At [5].
18 At [7] and [18]-[19].
19 At [8]. I note the sexual offending carried a maximum penalty of 10 years’ imprisonment.
20 At [14].
21 Houpapa v R [2016] NZCA 206.
22 At [31]-[32].
victim, and the Crown has suggested there may be a sexual relationship between you and the victim. Mr Zindel says that to his knowledge, you were friends. There was also a risk of harm to the victim in your offending: first, in the dangerous manner of your driving when you failed to stop for Police; and second, during the final abduction charge, due to the length of time she spent in the boot of your car with no fresh air circulating.
[30] I agree with the Crown that the case of Howard is the most similar to your offending. I consider your offending to be slightly less serious, because there is no evidence of an inappropriate sexual relationship between the two of you, and the age gap is significantly less. However, balanced against that, I consider the need to deter your behaviour, in light of the numerous warnings you received.
[31] I adopt a starting point of two years’ imprisonment for the four charges of abduction of a young person.
The driving charges
[32] I turn now to consider the need to add to (uplift) that starting point, to reflect the six driving while disqualified charges. For the sake of totality, I deal with the five driving while disqualified charges associated with the abduction charges, as well as the standalone driving while disqualified charge, together. Given their repetitive nature, I consider the maximum penalty of three months’ imprisonment should be added as an uplift to the starting point.
The speaks threateningly and common assault charges
[33] I also need to adjust the starting point to reflect the two charges of speaking threateningly and the charge of common assault. I note the repeated nature of your threats, and the fact that you sought out your father and became aggressive after he refused your request for money. Had I been sentencing you for this alone, I would have adopted a starting point of six months’ imprisonment. But the Sentencing Act requires me to look at what you are charged with as a whole and to be satisfied that the total sentence I impose is appropriate. On that basis I will uplift the starting point by a further three months.
Starting point
[34]That results in a starting point of two years, six months’ imprisonment.
Personal aggravating and mitigating factors
[35]I turn now to your personal aggravating and mitigating factors.
Previous convictions
[36] Your previous convictions are relevant to sentencing.23 You have four previous convictions: one for operating a vehicle carelessly, two for assault on police, and one for refusing a Police officer’s request for a blood specimen. However, given a lack of serious offending and the relatively small number of convictions, I will not impose any increase for these previous convictions.
Guilty plea
[37] As I said at your sentence indication, you should have the benefit of the full guilty plea discount of eight months (approximately 25 per cent).24
Personal mitigating factors
[38] As you are only 19 years old, your age is relevant to sentencing,25 in several ways:26
… young offenders’ incomplete neurological development; associated poorer judgment and greater impulsivity than adults, which can lessen the culpability of their offending; the fact that younger offenders not yet hardened into a life of criminality have a greater capacity for rehabilitation, which can be imperilled by the imposition of a severe custodial sentence early in life; and the greater harshness of imprisonment on young offenders.
[39] Your mental health issues are also relevant. The Court of Appeal has held that discounts of between 12 and 30 per cent may be available,27 depending on the
23 Sentencing Act, s 9(1)(j); Orchard v R [2019] NZCA 529 at [39]-[42].
24 Section 9(2)(b); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
25 Section 9(2)(a).
26 Roberts v R [2020] NZCA 441 at [24].
27 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [68]; Gotz v R [2019] NZCA 99 at
[20].
circumstances, for mental health issues where: there is evidence that mental health issues were causative of the offending and therefore moderate an offender’s culpability; or mental health issues would make a sentence of imprisonment less appropriate or more subjectively punitive.28
[40] Given their connection to your offending, I consider a discount to reflect your youth and mental health issues of six months (20 per cent) is appropriate.
[41]I therefore arrive at an end sentence of one year, four months’ imprisonment.
Home detention
[42] As your sentence of imprisonment is one of less than two years, I am able to convert it to home detention if I consider that appropriate.29
[43] At the time the provision of advice to courts (PAC) report was prepared, your parents’ home was not available for a sentence of home detention, and the report therefore recommends imprisonment. The report records that it is very clear your parents are supportive of you and wish to help you in any way they can, but they had concerns about their safety and property. Since then, your parents have said that they are willing to offer their address, so you can complete a sentence of home detention at their home. The PAC report writer has confirmed that, because of the volatile nature of the relationship between you and your parents, they do not recommend a sentence of home detention at your parents’ home.
[44] However, I must reach my own view on whether it is a suitable address. The PAC report records that when spoken to about completing a sentence of home detention at your parents’ address, you outlined several “rules” that your parents would have to acknowledge and adhere to, and you were reluctant for them to be informed of any of your appointments or conditions because you worried your parents would try to control you. Your parents have also expressed a fear that you would be violent or threaten them. You have two previous convictions for assaulting police, and three of the current charges are for assault and threats to your father. The PAC report writer
28 At [68].
29 Sentencing Act, s 15A(1).
considers you pose a low risk of reoffending, provided you engage with counselling and treatment in relation to violence as well as your use of drugs and alcohol.
[45] I am not satisfied that your parents’ home is a suitable address for home detention, primarily due to the tensions in your relationship and the risk of those tensions becoming worse if you are confined in close quarters together, with the risk that you might become violent and/or breach your conditions.
[46] I acknowledge what you have told me today about the work you have been doing in prison to manage your anger. And I also want to stress that, having read all of the reports prepared today, I know your parents have been very supportive and wish to continue helping you. It is my decision whether or not to convert your sentence to home detention, and, given the history of tension and conflict between you, I cannot be satisfied that it is appropriate to do so.
[47] I confirm that if an appropriate address had been available, I would have converted your sentence to one of home detention. I grant leave to apply for cancellation of your sentence of imprisonment and substitution of a sentence of home detention, if you find an address that is suitable.30
Result
[48] On four charges of abduction of a young person under 16, I sentence you to one year, four months’ imprisonment.
[49] On six charges of driving while disqualified, I sentence you to three months’ imprisonment, to be served concurrently, which means at the same time, rather than added on.
[50] On two charges of speaks threateningly and one charge of common assault, I sentence you to three months’ imprisonment, also concurrent.
30 Section 80I.
[51] On one charge of failing to stop for red and blue lights, I convict and discharge you.
[52]I disqualify you from driving for a period of six months.
[53] I impose the following special conditions for a period of six months after your release from prison:31
(a)You are to be assessed for an alcohol and drug programme/counselling/treatment, and to complete any programme/counselling/treatment deemed suitable to the satisfaction of the programme provider and probation officer.
(b)You are to attend an assessment and, if deemed suitable, complete a stopping violence programme, to the satisfaction of the programme provider and probation officer.
(c)You are not to associate directly or indirectly with the victim of the kidnapping charges, unless granted prior written permission from a probation officer.
(d)You are to complete any other counselling/programme/treatment as directed by a probation officer to reduce your risk of reoffending.
(e)You are not to associate directly or indirectly with the victim of the kidnapping charges, unless granted prior written permission from a probation officer.
(f)You are to complete any other counselling/programme/treatment as directed by a probation officer to reduce your risk of reoffending.
Gwyn J
Solicitors:
Crown Solicitor, Nelson
Zindels Barrister & Solicitor, Nelson
31 Section 93.
Addendum
[54] Unfortunately, I made an error when delivering this sentence this morning. I disqualified Mr Stead from driving for a period of six months (see [52] above). The period of disqualification should have been one year, as required by s 52A(6) of the Land Transport Act 1998, and as signalled in my sentence indication of 13 May 2021 (at [37]). Accordingly, that part of the sentence is amended to provide: “I disqualify you from driving for a period of one year.”
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